Earle A. Partington v. Joseph M. Gedan Howard T. Chang

Citation: 914 F.2d 1349Docket: 87-2375

Court: Court of Appeals for the Ninth Circuit; November 1, 1990; Federal Appellate Court

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The United States Court of Appeals for the Ninth Circuit addressed the case of Earle A. Partington v. Joseph M. Gedan and Howard T. Chang, following a remand from the Supreme Court due to concerns regarding the application of Federal Rule of Civil Procedure 11 in appellate proceedings. The Supreme Court had vacated the Ninth Circuit's previous decision which granted sanctions against defendants Gedan and Chang, highlighting a potential conflict with its ruling in Cooter Gell v. Hartmarx Corp., which clarified that Rule 11 does not apply at the appellate level.

In the Ninth Circuit's analysis, it clarified that sanctions were imposed not solely under Rule 11 but through the incorporation of Rule 11 into the Circuit's local rules. The court referenced prior cases establishing that its rules allow for the imposition of sanctions at the appellate level, thereby reaffirming its earlier opinion and maintaining its stance on the applicability of Rule 11 within its jurisdiction. The dissenting opinion, authored by Judge Reinhardt, expressed concern that the majority's decision disregarded Supreme Court precedent and misinterpreted the Circuit Rules, despite acknowledging the defendants' misconduct.

In *Cooter & Gell v. Hartmarx Corp.*, the Supreme Court unanimously ruled that Federal Rule of Civil Procedure 11 does not apply to appellate conduct. Following this ruling, the Supreme Court vacated a prior decision in this case for reevaluation. Previously, sanctions under Rule 11 were imposed on appellees Gedan and Chang for a frivolous request for costs and fees, despite other available sanctioning methods. Upon remand, the court cannot re-impose these sanctions that were vacated by the Supreme Court.

The majority now claims that sanctions were imposed not solely under Rule 11 but through Circuit Rules that incorporate Rule 11. This assertion contradicts earlier statements where the majority explicitly referenced Rule 11 as the basis for sanctions. Furthermore, even if one accepts the majority's new interpretation, it is inconsistent with the Supreme Court's ruling that Rule 11 does not apply in appellate proceedings. The majority's reliance on previous cases that addressed district court sanctions is also misplaced as those cases do not pertain to the appellate court's authority.

Even if the majority's interpretation were accepted, the Supreme Court's clarification on Rule 11's inapplicability renders those earlier cases obsolete. Thus, it follows that 9th Circuit Rule 1-1 does not incorporate Rule 11, reinforcing that Rule 11 cannot be applied to appellate cases.

Ninth Circuit Rule 1-1 does not specify criteria for determining when a Federal Rule of Civil Procedure is 'relevant'; instead, the focus is on whether there is a corresponding rule in the Federal Rules of Appellate Procedure or Ninth Circuit Rules. When a specific appellate rule applies, such as Federal Rule of Appellate Procedure 38, which allows sanctions for frivolous appeals, it supersedes the Civil Procedure rules. The excerpt references the Supreme Court's decision in *Cooter & Gell*, noting that Rule 11 does not pertain to appellate proceedings and that the appellate rules provide a suitable framework for such matters. The dissent argues against applying Rule 11 to appeals, emphasizing that doing so would introduce confusion and conflict due to the extensive case law developed under Rule 11, which is tailored to district court practice and not appellate contexts. The dissent expresses concern that this misapplication could create unnecessary burdens for the court. The excerpt concludes with a note on the decision to rehear the case en banc and provides examples illustrating the distinct nature of appellate practice compared to district court procedures, highlighting that sanctions like those under Rule 11 should not be applied to actions occurring post-pleadings in appellate matters.